An Interview with Donald Maurice

As a teen, Donald Maurice helped with his family’s construction and land development company. Out in the hot sun, he’d spend hours pounding nails, sawing boards, as part of a team building houses. It was the perfect beginning for his legal career, in which he began as a land use attorney. But this was the mid-1980s, and the savings and loan crisis quickly transformed him into a financial services attorney. “I had a knack for understanding commercial property and the challenges that borrowers and lenders faced,” he says. When that crisis resolved, his career continued to evolve in this practice area. Now, he helps manage a 30 plus attorney law firm, Maurice Wutscher, with offices in 16 states. He’s a regular contributor to his firm’s blog, hosts webinars, and gives speeches throughout the country on consumer and commercial finance laws.

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What inspired you to become a lawyer?

My family’s work was construction and land development, mostly commercial and residential land development. I would work with my family in the summer and when I had breaks from school. At a very young age I learned that the law impacted how we could develop properties and construct buildings. I found it very interesting, and when you’re outside in the hot heat of the summer sun, it seemed a lot better to be on that side of the business than on the labor side.

How did you come to specialize in consumer and commercial finance companies?

When I went to law school, which was in the mid-’80s, the S&L crisis began to unfold. When I graduated in 1988, my intent was to pursue a career in land use law, but at that time there weren’t many developments going on because of the crisis. In fact, commercial and residential developments were largely in default. The loans were not being paid and the lenders needed to begin to take back their properties. Some smaller New Jersey banks reached out to the law firm where I worked and wanted assistance in recovering these properties. I had a background in construction and development, so I understood the state of the properties and went from being a land use attorney to a financial services attorney just by virtue of the economy at the time.

What do you enjoy about it?

I had a knack for understanding commercial property and the challenges that borrowers and lenders faced. As the economy began to recover, there was less and less work like that. Commercial properties were thriving, and the development end of it was moving forward properly. A theory of law called lender liability began. It was interesting and new, and it involved borrowers accusing banks of wrongdoing. I began successfully defending against these cases.

Soon there was a new area of lending that was growing very rapidly and that was the consumer side. What banks began to see in the late ’80s and early ’90s was a growth in consumer-related litigation arising from financial products and services, particularly in the automobile finance area. The same banks that had hired my firm and myself to defend them in commercial matters began to send the consumer matters to me. I found them very similar to commercial matters. It fit very well into what I was doing, and I was very successful on that end of the work, as well as defending the financial services companies against those types of claims.

Later on, a group of plaintiffs’ attorneys representing consumers in the financial services transactions began to expand out from automobile loans to all types of consumer loans. So, we saw a lot of activity in credit cards and credit card disclosures and the alleged failure to make proper disclosures. In the late ’90s and turn of the century, we saw the growth of debt collection, particularly with the emergence of large companies that bought defaulted debt and then would collect on it. Unlike original creditors and creditors who extend credit, the debt-buying companies were often subject to other sets of federal and state regulations that allowed for civil claims to be brought against them that were not typically brought against creditors.

So I began to represent these debt-buying companies. There were not a lot of people 20 years ago doing this work, and I have been representing that industry for 20 years. I continued to grow that practice in New York, New Jersey, and Pennsylvania.

You now help to run a 30-plus attorney law firm with offices in 16 states. What do you most enjoy about heading up a firm?

Running a firm is the toughest thing an attorney can do. I don’t run it myself, I can assure you of that. We have partners who handle various aspects of it. What I like about having a firm like ours is that we can specialize primarily in consumer financial services. To have a group of attorneys who all are working on regulatory compliance and financial services litigation brings a great amount of knowledge and experience to the table. It allows us to provide our clients with superior services. We have, for example, myself and others here who have been practicing in this area for 30 years.

We have offices from California to Boston to South Florida. It gives us a very good overview of what is happening nationally. We are able to spot emerging trends and help our clients who primarily are engaged nationwide to address some of these emerging issues quickly. I also do a lot of work in state legislative affairs. You begin to see patterns in how states are regulating consumer financial services, and in my role, I get to assist in shaping those state laws through my legislative work.

What are the main challenges of running a firm?

My biggest challenge is to provide assistance to all the other attorneys whom I work with. The attorneys are coming to me with questions either on the law or strategy, and my role is to assist them in answering those legal questions and developing a strategy. That means I have to be familiar with all of their cases.

Do you have a systematic or technological solution to tracking cases?

We do employ a wide variety of technology solutions. We share a lot of information through that technology, and we have systems that allow us to track the cases. But in ligation you can’t replace the ability to strategize with technology. So it has to be a hands-on endeavor in each of the cases. We are constantly having meetings concerning each of the cases that we work on internally and with our clients. Technology can only assist you in the very fundamental aspects of tracking and monitoring cases.

Is there a lot of travel for you?

I travel very often. I’m licensed in Massachusetts, New York, New Jersey, and D.C., and I have about 30 federal admissions. In any coming week, it’s not unusual for me to be in Boston, New York, Chicago, or New Jersey. I also do a good bit of travel for my legislative work.

You also provide advice and counsel to attorneys in matters of professional responsibility and attorney ethics. What issues do you see rise most frequently?

In the consumer financial services space, there are attorneys engaged in consumer debt collection. Unfortunately, the practices of these attorneys have come under extraordinary scrutiny as a result of the application of the federal Fair Debt Collection Practices Act (FDCPA). This has created extraordinary difficulties that other attorneys do not regularly face. They are subject to lawsuits by consumers simply because the attorneys file lawsuits on behalf of their clients.

The FDCPA is sometimes utilized to sue these attorneys, alleging, for example, that because they lost a case, the lawyers did not have a basis to sue on the claim. Sometimes the lawyers are sued because it’s alleged that they did not spend enough time reviewing a file before they sent a letter. The federal Consumer Financial Protection Bureau has brought enforcement actions against lawyers and law firms based on that theory. There is no other attorney practice area that I know of that is subject to that great deal of risk. It has caused a significant number of problems for these attorneys.

What I have learned from representing these attorneys is that they probably spend far more than other types of practice groups on both professional compliance and compliance with the federal and state laws in the areas in which they practice. They do this not only because they want to do a very good job for their clients, but because of the personal risks that they now face.

You help write a blog, the Consumer Financial Services Blog. How valuable is the blog to the firm?

We started the blog about six years ago, and we did it because we love to write. My articles are typically analytical, but the blog also has a lot of case updates that our clients may find interesting. Certainly there is an element of the blog that is there to display the talent of our attorneys. Most, if not all, of our attorneys publish to the blog regularly. It provides the public with insights into the skill and expertise of our attorneys.

It also keeps our attorneys up to date on developments in law. Because we’re writing about what we believe are important developments impacting consumer and financial services, our attorneys are staying abreast of changes in the law, both in the decisional law and in the regulations and statutes.

How often is a new article posted on the blog?

Since May of 2015, we typically publish four articles a week. In all, there are nearly 550 articles published through the blog.

You recently spoke at the ABA Business Law Section about the case the Midland Funding v. Aleida Johnson case before the U.S. Supreme Court. What are your main views about this case?

The issue presented in Midland v. Johnson, whether a proof of claim for a debt subject to an expired limitation violates the FDCPA was one our firm successfully defended many years ago in the Eastern District of Pennsylvania bankruptcy court. I though the issue was resolved, but it re-emerged in the 11th Circuit Court of Appeals, in Crawford v. LVNV and again from the same court in Midland v. Johnson. We knew that that the decisions did not sit right under bankruptcy law. Claims under the bankruptcy code include debt subject to defenses. The fact that a debt is subject to the defense of an expired limitations period doesn’t mean that the creditor no longer has a claim under bankruptcy law.

We thought maybe the theory would remain in the 11th Circuit, which covers Georgia, Florida, and Alabama, and wouldn’t expand to other parts of the country, but sure enough it did. Soon after, we had a case in the Third Circuit, Torres v. Cavalry, a case in the Fourth Circuit, Dubois v. Atlas, and several trial court level cases in the Fifth and Seventh Circuits. All of them involved these Crawford claims.

We successfully argued for a dismissal in the Torres case. Dubois went to the Fourth Circuit Court of Appeals which, in August of 2016, affirmed the decision of the bankruptcy court dismissing the claim. And in the Seventh Circuit—several Illinois bankruptcy courts also dismissed the claim, one of which was affirmed by the U.S. District Court.

I’m outside counsel to the Receivables Management Association, which is a trade organization of companies that are engaged in the purchase and collection of accounts receivable. Some of these companies are debt buying companies, which were mostly the targets of each of these complaints. They had asked us to look at this issue because of the work that we had done and the cases I mentioned.

Our firm filed an amicus for RMA in Midland v. Johnson. We thought we could add to the excellent work that Midland’s attorneys had done by addressing the issue of due process—an issue we had explored in one of the Illinois cases. Essentially, in a Chapter 13 bankruptcy filing, due process can only be afforded to creditors holding claims is they are allowed to participate in the bankruptcy process by the filing of a proof of claim. I later had the pleasure of being at the Supreme Court to hear the oral argument.

You also give many webinars. What is the primary value of doing these?

Because I’m working across the country, we see a lot of trends. One of the early webinars we gave was on Crawford. We talked about Crawford soon after it came down and said that there’s a possibility this could spread throughout the United States. We offered insights so that others could defend these cases. Both plaintiffs and defense counsel participate in our webinars. It’s not a lecture, but rather a discussion of the issues.

I work a lot with the ABA and produce presentations and sometimes webinars, and various other organizations ask us to do the same.

You give many speeches. If you could pick any topic to talk about what would it be?

The one I enjoy the most is professional responsibility. Attorneys hold themselves to such a high standard of moral and professional responsibility. I don’t know of any other profession that goes as far as what is required of us. It lets the public know that attorneys strive not only do their best work for each of their clients, but also that our job is to protect the integrity of our legal system.

What advice would you give to a new attorney who’s just starting out?

Number one: spend your early years learning how the law developed. Learn procedure as well. Spend a lot of time not only reading the case law but understanding the how and why the common law, statutory law, and procedure developed.

In my first five years of practice, I spent an inordinate of amount of time learning not just what the law was but how the law got there. It’ll help you later on because as you continue in your career, it helps you understand the future development of the law.

Number two is to have peers and mentors. Certainly if you’re in a smaller firm you need to be part of the larger organizations. The ABA is prime example of that. When I first started out, my firm was small. Even our firm, though we have 30 attorneys, is still small compared to larger firms. The ABA’s Consumer Financial Services Committee is the preeminent spot for you to be. I’ve been a member since I began to practice, and so many of the leaders in that group, whether they realize it or not, were mentoring me. They were encouraging me to participate in presentations and in writing. The Consumer Financial Services Committee wants you to be involved. At the same time the people who go to the meetings are the people shaping consumer financial services law. You will not see that anywhere else. And it is also a unique setting, you have defense attorneys, plaintiff attorneys, general counsel, federal and state regulators, and enforcement attorneys all in one place.

I have personally benefited from these interactions. As a defense litigator, I often touch on so many areas of consumer financial services law, whether it be credit reporting, or debt collection or disclosures or privacy and now technology and payment systems. Because of this group, it allowed to me to explore the connections between the financial products and services from the creditors, regulators and consumer advocates perspectives, long before the products or services made their way to the public.

What do you do for fun?

I love to do things around the house. I do our yard work and landscaping and all of our handyman work. Anything that needs to be done around the house from plumbing to electrical to cutting the grass.

I’ve always loved taking pictures in different forms—sports photos, photos of the family, or our travels. Lately, I’ve been very interested in aerial photography. A lot of people call them drones but these drones have pretty sophisticated cameras attached to them. It enables you to get to locations that you typically wouldn’t or couldn’t go, and you can capture some beautiful landscapes. I also enjoy traveling with my wife and my two adult daughters.

The September issue of Business Law Today will feature topics and advice for business lawyers such as smart contracts, what structured negotiation can offer business attorneys, shareholder activism, and more.

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